Rea v. Rea

Ladd, J.

i at.imo.n-vagaSstSonresident. The defendant Elizabeth Rea only was? served with notice and defends. She pleaded to the jurisdiction of the court, and, this being overruled, omitted to file any farther answer. Had no evidence been adduced, there might have been something in the suggestion that the allegations of the petition should be taken as true. Rut evidence was introduced from which it conclusively appeared that the plaintiff’s judgment wss void, and that plaintiff was entitled to no relief. *243 The service was by publication only, and there was no appearance. True, the statutes authorize decrees of divorce on constructive service. -Such proceedings, though not strictly in rem, are of that nature, or, as sometimes said, are quasi in rem, in so far as they affect the marital status of the parties. As to alimony and costs, however, they are uniformly regarded as actions in ■personam, and all orders or judgments allowing either against a nonresident defendant who has neither appeared nor been served with process in the state where the suit is pending, and has no property therein, are invalid. Rigney v. Rigney, 127 N. Y. 408 (28 N. E. Rep. 405, 24 Am. St. Rep. 462 ); Prosser v. Warner, 47 Vt. 667 ( 19 Am. Rep. 132 ); Garner v. Garner, 56 Md. 127 ; Harding v. Alden, 9 Me. 140 ( 23 Am. Dec. 549 ); Van Storch v. Griffin, 71 Pa. 240 ; Beard v. Beard, 21 Ind. 321 ; 2 Bishop on Marriage and Divorce, 159; section 3800, Code. Nor can the judgment be sustained on the theory, as seems to be thought by appellant, that it is merely incidental to the decree of the divorce. Jurisdiction sufficient to support a decree changing the marital status will not necessarily sustain a judgment for alimony or costs. No final process is essential to enforce the decree of divorce, while a money judgment can only be collected by process against defendant or his property. Our statute authorizes the court, in granting the divorce, to enter such orders in relation to the property and maintenance of the parties as shall be right ' (section 3180, Code), and no doubt can be entertained as to the court’s power to appropriate the nonresident’s property within its jurisdiction for these purposes. Harshberger v. Harshberger, 26 Iowa, 503 ; Twing v. O'Meara, 59 Iowa, 326 . In these cases the want of jurisdiction to make such orders, save when the subject-matter is present out of which alimony may be allowed, when the defendant is a nonresident, was clearly recognized.

*244

2. void judgfirmatioSf'

*243 II. But it is argued that vitality was injected into this void judgment by a ruling on a motion to confirm. The *244 defendant, in pursuance of the provisions of section 3796 of the Code, moved that the judgment be set aside, and a retrial be granted, alleging, among other things, that the judgment was void. Thereupon the plaintiff moved that the decree previously rendered be confirmed. These motions caiñe on for hearing November 19, 1900, when the court held that defendant was entitled to a retrial as to the amount of alimony, but, as a condition precedent, required the filing of a cost bond in the sum of $200. Time within which to do so was extended three times, when, on December 26, 1900, the motion for retrial was overruled, and the plaintiff’s motion “that the decree rendered in this court heretofore about October 5, 1898, be now confirmed against the defendant,Delta D. Rea,”and ah entry made that the court doth find and adjudge the decree rendered in this “court in this case' on the 5th day of October, 1898, dissolved the marriage relation theretofore existing between iDlaintiff and defendant, and the decree and judgment for twenty thousand dollars alimony, was proper, and fully disposed of the subject-matter as to said marriage relation. It is therefore by the court now ordered, adjudged, and decreed that the motion of defendant, Delta D. Rea, to set aside the decree and judgment rendered in this court in this case on the 5th day of October, 1898, be and is hereby overruled, and plaintiff’s motion to confirm the said decree and judgment for twenty thousand dollars alimony is sustained, and that plaintiff, Elizabeth M. Rea, thereby have and recover from defendant, Delta D. Rea, the sum of twenty thousand dollars alimony and the costs of this suit, taxed at $-, and execution may issue therefor.”

The statute provides that a defendant upon whom service is had by publication “may at any time within two years after the rendition of the judgment appear in court and move to have the action retried, and security for the costs being given, they shall be permitted to make defense; and thereupon the action shall be retried as to such -defendants as if *245 there had been no judgment, and upon the new trial the court may confirm the former judgment, or may modify or set it aside.” Section 3796, Code. It is apparent from this that only upon permitting a defense does the court acquire jurisdiction to confirm, modify, or set aside the former judgment. A trial is contemplated before either can be done. But the court refused a trial, and then proceeded to enter such an order-as could only be made as a result of a trial. With the denial of permission to defend, its jurisdiction of the subject-matter ended, and its alleged decree subsequently entered was entirely without authority. ' Having declined to inquire into the validity of the former decree, the court was not revested with jurisdiction to review its correctness. What was done beyond overruling the defendant’s motion was a nullity. Moreover, the statute quoted does not contemplate judgments rendered without jurisdiction, but those only which are authorized on service of notice*'by publication. When a judgment is void it may be assailed at any time, and by any person in whose way it is an obstacle, and the court might well have set this aside without exacting a cost bond. Nor did the appearance to file the motion after judgment confer jurisdiction retrospectively. Moore v. Wat kins, 1 Ark. 268 ; Gray v. Hawes, 8 Cal. 562; Briggs v. Sneghan, 45 Ind. 14 ; State v. Cohen, 13 S. C. 198; Shaw v. Rowland, 32 Kan. 154 ( 4 Pac. Rep. 146 ). The only decision to the contrary is Curtis v. Jackson, 23 Minn. 268 , and that was subsequently overruled by Godfrey v. Valentine, 39 Minn. 336 ( 40 N. W. Rep. 163 , 12 Am. St. Rep. 657 ), in which the court said: “The course of the moving party in thus seeking to have a void judgment set aside — to which relief he is entitled as a matter of right — but at the same time consenting and asking that the court shall now hear and adjudicate upon the cause, may justify the court in entertaining the cause and proceeding as in an action pending in which the defendant has voluntarily appeared. But in thus urging his legal right, and thus invoking and consenting to the fu *246 ture action of tbe court, the moving party should not be deemed to have conferred jurisdiction retrospectively, so as to render valid the previous judgment, which, being unsupported by any authorized judicial proceedings, was not merely voidable, but void and in legal effect a nullity.” Of necessity the motion to confirm was contingent upon a retrial, without which the court had no jurisdiction to inquire into the merits of the action or the judgment entered. — - Aeeirmed.